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In Re Mark Gerard Mulroe

September 22, 2011

IN RE MARK GERARD MULROE, ATTORNEY-RESPONDENT.


The opinion of the court was delivered by: Justice Garman

Opinion

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 On June 20, 2007, the Administrator of the Attorney Registration and Disciplinary Commission filed a one-count complaint against respondent, Mark Gerard Mulroe. The complaint alleged that respondent converted third-party funds; failed to hold property of a third person that was in his possession in connection with a representation separate from his own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct; failed to promptly deliver to the third person the funds that person was entitled to receive, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct; engaged in conduct involving dishonesty, deceit, fraud, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.*fn1

¶ 2 The Hearing Board found that respondent had converted funds and violated Rules 1.15(a), 1.15(b), and 8.4(a)(5). The Board concluded, however, that the Administrator did not prove by clear and convincing evidence that respondent violated Rule 8.4(a)(4). The Board recommended that respondent be suspended from the practice of law for three months and be ordered to attend a seminar on professionalism and office management prior to the conclusion of his suspension. The Administrator timely filed exceptions to the report and recommendation of the Review Board. Ill. S. Ct. R. 753(d)(2) (eff. Sept. 1, 2006). The Review Board affirmed the Hearing Board's factual findings and findings of misconduct, but recommended a six-month suspension.

¶ 3 We allowed the Administrator's petition for leave to file exceptions. Ill. S. Ct. R. 753(e).

¶ 4 I. BACKGROUND

¶ 5 Respondent was admitted to practice law in Illinois in 1989. He began his own legal practice doing transactional work in 1992. Respondent bought into a friend's business, which helps recovering addicts, and other ventures. Helping these businesses became a significant function of his law practice. At the time of the hearing, respondent estimated that he spent less than 20% of his time on his law practice.

¶ 6 Even though he did not usually handle client funds, respondent asked his paralegal, Denise Wagner, to open an IOLTA client trust account on his behalf for his law practice based on the Commission registration form he was sent one year. This account was in addition to the practice's operating account. Respondent used the IOLTA account as a "pass through" account to park money that he used for business purposes. He delegated financial responsibilities including billing and the payment of the law practice's expenses to Wagner, who testified that "[m]ost of the money that *** came in went directly to the IOLTA account." However, no checks had been ordered for the IOLTA account, so the money was routinely moved into the operating account before being used to make payments. Eventually, Roy Gibson, respondent's banker, began to transfer money between accounts to pay expenses without consulting respondent. Respondent admitted that he did not regularly balance his accounts, but left much of that responsibility to Gibson and Wagner.

¶ 7 In 2002, Julie Fishman filed a petition for dissolution of marriage against her husband, Adam Fishman. Adam was a friend of respondent. In July 2003, the Fishman marital home was sold and the proceeds, $141,506.14, were held in an escrow account by Julie's attorney, Jonathan Sherwell. Respondent agreed to represent Adam and, when Julie discharged Sherwell in October 2005, respondent agreed to take possession of the Fishman funds until the allocation was determined by the court. On November 3, 2005, Sherwell transferred $113,397.65 to respondent's IOLTA account, which represented the total amount of the funds after all court-approved disbursements had been made. In December 2005, the dissolution was finalized and the trial court awarded Julie $127,783 to be paid from the escrow. Both Julie and Adam filed motions to reconsider after the judgment was entered. Respondent agreed to represent Adam free of charge in the post-dissolution matters. At that point, Julie was representing herself.

¶ 8 Between November 3, 2005, and February 28, 2006, respondent made transfers from the IOLTA account to his business account to make payments for his personal and business expenses. As of February 28, 2006, the IOLTA account had been drawn down to $174.81. Respondent never received authorization from the court or from Julie or Adam Fishman to use the funds to pay his business and personal expenses.

¶ 9 On August 16, 2006, the trial court entered an order directing respondent to release the funds to Julie. Both Julie and Adam told respondent that they intended to appeal the order. Adam asked respondent to represent him on appeal. Respondent declined, but filed a notice of appeal on Adam's behalf. Respondent subsequently received letters from Julie, dated September 15 and September 26, 2006, demanding that he transfer the funds to her and make a full accounting. Before the Hearing Board, respondent testified that he had a conversation with Julie shortly after he received the September 26 letter in which he told her the amounts she referenced in her letter were not accurate. Julie told him she was planning to appeal the order. Respondent did not transfer the funds or provide an accounting, but he testified that if he had written a check on his operating account at that time, it would have cleared and that his net worth at the time was approximately $2 million to $3 million.

ΒΆ 10 On November 3, 2006, the trial court heard Julie's "Verified Petition for Rule to Show Cause Why Respondent Should not be Held in Indirect Contempt of Court (Disbursement of Escrow)." The court directed respondent to transfer the Fishman funds to Julie by November 13, 2006, to avoid being held in contempt. On November 3, 2006, respondent did not hold the Fishman funds in his IOLTA account. Between November 3 and November 8, 2006, he made three deposits to his business account, totaling $151,000. On November 6, respondent drafted a check on his business account to Julie for $115,606.49, the amount of the Fishman funds plus interest. The check was dated November 8, 2006. He testified before the Hearing Board that he postdated the check so that there would be time to verify the correct amount owed. On November 7, ...


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